News

Thomas Fogarty ’24 and Ken Krmoyan ’24 have been chosen to receive the 2023 Student Scholarly Writing Award for papers on the application of stare decisis in historical jurisprudence and the modern problem of protecting foreign corporate whistleblowers, respectively.

In Right About Being Wrong? Clarence Thomas, The Casey Factors, and Stare Decisis in the Founding Era, Fogarty tests whether Supreme Court Associate Justice Clarence Thomas’s understanding of the historical role of stare decisis comports with founders’ actual views on the doctrine, adding to a sparse catalog of scholarship on the topic.

Krmoyan’s note, Immigration Incentives in FCPA Enforcement: The Case for Protecting At-Risk Foreign Whistleblowers, proposes new immigration incentives for foreign whistleblowers who might be deterred from reporting U.S. securities law violations due to threats of retaliation or inadequate legal protections in their home countries. It will be published in Duke Law Journal in December.

Winners are selected annually by the Law Teaching Committee, currently chaired by Professor Veronica Root Martinez, and approved by the entire faculty.

“The Law Teaching Committee was incredibly impressed with all of the nominated papers, which demonstrated the analytical rigor of our students here at Duke Law,” Martinez said. 

“These two papers, in particular, stood out for their novelty, clarity of thought, and original contributions to scholarly conversations.  We are elated to be able to recognize their excellent work.”

Thomas’s view not justified by historical evidence, Fogarty finds

As an admirer of Thomas’s jurisprudence, Fogarty said he was eager to test the justice’s theory of stare decisis after Thomas wrote, in his concurrence in Dobbs v. Jackson Women’s Health Organization, that the decisions in 1973’s Roe v. Wade and 1992’s Planned Parenthood v. Casey were “demonstrably erroneous.” In that concurrence and elsewhere, Thomas has sought to promote his dismissal of judicial precedent by downplaying its role and importance as far back as founding-era courts. But Fogarty found that Thomas’s view does not comport with historical conceptions of the doctrine.

“The founders valued stare decisis as a critical means of limiting arbitrary discretion,” Fogarty writes. “Ripples of ‘demonstrably erroneous’ pronouncement abound in founding-era writings. But they do not mean what Thomas claims they mean. ‘Demonstrably erroneous’ did not simply connote atextual interpretations of the law. Like the court in Casey, jurists emphasized natural justice, certainty, convenience, consequences, and the spirit of the law in the stare decisis calculus.

“Clarence Thomas can plausibly assert a bevy of justifications for his view of stare decisis; history is not one of them.”

Fogarty said that in researching the paper, he was surprised to learn that arguments over judicial doctrine were as vibrant and robust centuries ago as they are today.

“A part of me expected that there was some accepted way of doing law back in the 1700s that guided judges and that our philosophical debates on topics like originalism are relatively recent developments. The reality could not be further from the truth,” he said.

“There was no universal formulation or set of factors for applying stare decisis. Cases and writings from the era portray the same tension between the need to get the answer right and the desire to respect expectations about the law.”

Professor of Law H. Jefferson Powell, who nominated the paper, encouraged Fogarty to submit it for publication.

“One of the many things I admire about the work he did is that his conclusion runs contrary to his own intellectual preference or at least hope, that Justice Thomas would be proven faithful to the founders,” Powell said.

“Instead, Tom concluded – correctly, in my view – that the founders disagreed over the role that precedent should play in constitutional law, with various positions attracting significant support. While not absent from their debates, Thomas’s near-rejection of constitutional precedent was distinctly a minority position.”

Fogarty, who graduated from The Ohio State University, is president of the Mock Trial Board, clerkship coordinator of the Federalist Society, online editor for Duke Law Journal, and a member of the Moot Court Board and the Christian Legal Society. He plans to clerk after graduation.

Fogarty called Powell’s Constitutional Law II one of the best classes he has taken at Duke Law and praised his “unmatched ability to make students question their views of the law.”

“As an originalist, I came to the class thinking it would confirm my beliefs about the law and the founding generation. [He] showed me, however, that there is far more to the debates surrounding founding era jurisprudence than I had previously thought,” Fogarty said.

Krmoyan proposes legislative solutions to encourage whistleblowers

Krmoyan said he came up with his topic after studying U.S. whistleblower protections in Corporate Crime, taught by Samuel Buell, the Bernard M. Fishman Distinguished Professor of Law, and Foreign Anti-Bribery Law, taught by Rachel Brewster, the Jeffrey and Bettysue Hughes Distinguished Professor of Law.

“One of those critical protections was a prohibition on employer retaliation should a whistleblower decide to come forward,” he recalled. But, he learned, a Second Circuit case held that the anti-retaliation provisions of the Dodd-Frank Act do not apply extraterritorially.

“In other words, a foreign whistleblower is less protected under the act than a domestic whistleblower. This got me thinking about other ways in which protections for whistleblowers are different across different countries and what could be done about it,” Krmoyan said.

Immigration Incentives in FCPA Enforcement: The Case for Protecting At-Risk Foreign Whistleblowers specifically addresses whistleblowers reporting violations of the Foreign Corrupt Practices Act (FCPA) who are at special risk of retaliation, either because their country of residence does not provide adequate domestic legal protections, or they are threatened by a hostile home government.

“Whistleblowing carries significant disincentives, particularly in the corporate context, for any whistleblower,” Krmoyan writes. “With these disincentives in mind, whistleblowing about corruption involves additional complications. ... [P]otential whistleblowers in this context bear in mind the consequences they may face not only from their employer but also, potentially, from government actors.”

To encourage such at-risk employees to come forward, Krmoyan proposes offering immigration incentives in the form of two legislative solutions: a new “W” visa for foreign FCPA whistleblowers and amendments to the existing S-5 “informant” visa to allow whistleblowers to seek protection. Similar incentives have been offered to foreign informants in organized crime and human trafficking operations, he notes.

“The prospect of immigrating to the U.S. can be especially appealing for foreign FCPA whistleblowers that risk losing their job with no retaliation protections in place or facing risk of more serious harm,” Krmoyan argues.

“No doubt, not every person in these circumstances will say ‘yes.’ However, more people would entertain the idea of reporting, compared to the status quo of no immigration incentives and a likelihood of retaliation, where many FCPA violations likely go unnoticed and the deterrent effect of the U.S. whistleblower regime is weakened.”

“Ken identifies a significant problem in international investigations of overseas bribery and discusses the varying national perceptions of whistleblowers,” Brewster said in her nomination. “He then provides a well thought out immigration-based solution that would partially address the issue. [T]he paper is an excellent explanation of the challenges facing foreign whistleblowers and provides an innovative policy solution.”

Krmoyan noted that he was born and raised in Yerevan, Armenia, and moved to the U.S. after graduating from high school. He earned bachelor’s and master’s degrees at the University of Chicago and is an articles editor for the Duke Law Journal. The 2022 Jessup Cup winner, Krmoyan serves as Dean’s Cup Coordinator for Moot Court. He also served as judicial intern to Judge Christopher R. Cooper of the U.S. District Court for the District of Columbia and plans to join Simpson Thacher & Bartlett after leaving Duke Law.

“An immigration-focused solution came naturally to me thanks to my background,” Krmoyan said. “I have also been fortunate to take Professor Kate Evans’s U.S. Immigration and Nationality Law course and receive really useful feedback from her on my note. In a way, my piece is a combination of my interests in corporate criminal law and immigration law.”

“FCPA compliance and investigations are a big practice, and I’m fortunate to bring to the table my knowledge of this area of law, thanks to research for the piece,” he said.